Here
in San Diego a trial of national notoriety has just concluded with the
accused individual, David Westerfield, being found guilty of kidnapping, murder and probably rape of a 7-year
old child. Friends who know of my interest in the law, and that I live
in San Diego, have asked me what I think about it all, assuming I would be
hooked by it.

Well, they're right, this case caught my
interest early on because, for me, there were some out-of-place
parts to the picture that was developing almost from the first report. It
started as a simple gut reaction, but as the story developed it grew to the
point where I found myself watching developments in the press and then the
trial as closely as possible. So here is what I have come to
believe...

Let me first start by saying that I think
child abuse ought to be
a capital crime and that whoever did this, or, for that matter, abuses ANY
child, deserves a slow, painful, and
incredibly grim demise. I do not believe there is any justification
whatsoever for the continued existence of anyone who would do such a thing
to anyone, and most especially to a child.

But I believe that in this particular
case, the system has found the wrong man guilty of
this crime.

Remember, we work in a system in which one
is considered innocent until PROVEN guilty. In this case, an entirely circumstantial case, the
rules given out were that if there is more than one reasonable explanation for a given
piece of evidence, one of them tending to lead to a finding of not guilty,
it is that version that must be accepted. It does not matter if the
defendant might have done it or even if he probably did
it by a "preponderance of the evidence" as is the case in a civil
trial. In a criminal trial, especially a capital case as this was, there must remain no reasonable doubt that he did it for a proper
finding of guilty.

It is simply my contention that as this
case was presented by the State and wallowed in by the media, there are a number
of reasonable doubts about the evidence and the conclusions drawn from
them. I don't know if he did it or not, but under our system, I think
there is clear and reasonable doubt and that means he should not have been
found guilty.

Below are my questions and problems with
this case. But first a little background as to why it even matters to
me enough to take the time to post this page on my site (other than to avoid
having to go through it with everyone individually). A huge issue for
me is that if if it is so
easy to find a person guilty despite what are, to me, clear questions, then,
as I'll discuss later, it calls an important cornerstone of my legal
philosophy into question as well.

In addition, I was
surprised at the speed with which the accused, David Westerfield, which I
will hereafter refer to in the legal shorthand of "(D)" --meaning
"Defendant"--was centered on as the ONLY suspect when, to my mind,
several possible suspects (discussed below) were summarily excluded. And then I was
really puzzled by the passion with which the media, both local and national
instantly assumed (D) to be guilty and from BEFORE the first witness
appeared on the stand, started analyzing everything from the sole view point
of his guilt. No data leading to a possible acquittal was examined,
only those that lead to a guilty verdict. Those that could be
interpreted multiple ways were only interpreted in the way that lead to
guilty. Something was out of whack here.

And, to me, something was REALLY out of
whack with the picture being painted by the Prosecutor "(P)" and
the media. So, from that standpoint of being puzzled and bothered by what I was
hearing, I started paying attention. I carefully watched the trial,
which was easy with the gavel-to-gavel coverage and a horrid summer without
steady work. And I was astonished
that the (P) would go to trial with their case and even more so when the jury then found
(D) guilty based on the evidence presented. I did not, in this
atmosphere of inflamed passion where lots of people I talked to accepted his
guilt as a cosmic "given" regardless of any evidence, expect a "Not guilty"
verdict. But
I did expect a hung jury. If ever there was a reasonable doubt, it had
to be here and surely at least one of the 12 jurors was open-minded enough
to see it. So I was surprised a bit by the guilty verdict.

This guilty verdict is problematical for me not only
because of this case in specific and what I believe is questionable evidence, but because of the implications in other
capital cases. If (D) is given a death sentence, which I strongly believe the
actual perpetrator of the crime deserves, it forces me to admit that an old
friend's aversion to the death penalty based on it being so easily misapplied
has to be looked at carefully. It also means a killer may still be out
there.

Following the trial the judge released
some sealed files which, on their surface, appear to support the
verdict. We'll see...

Problems

For
me, there are a number of issues, anyone of which would raise
"reasonable doubt" but taken together, for me, combine to scream out that
this guy probably not only did not do, he could not have done it. That is not
to say that the evidence does not support the clear possibility that he was
in some way involved, say, in a cover-up. But that is a different issue. And
to prove that he MIGHT have done it, or even that he PROBABLY did it does
not support the legal requirement of guilty beyond a reasonable doubt.

Please understand, this is not intended to be a legal brief
trying to go into detail on these issues and argue them as one would in
court. It is merely a summary of the things that bother me about the case as
presented. There may well be other elements that would, for me, clearly
cement (D)'s guilt but based on what I heard both in the case in principle
and the closing arguments, as well as some material in the sentencing phase,
those other elements were never presented while problems were.

The issues that raise my doubts, and which
I'll itemize below, are these:

(D)'s ability to have snatched the
victim as detailed by (P)

(D)'s motivation for the crime

Fingerprint Evidence

Fiber Evidence

Blood Evidence

The trip

The bugs

Other suspects and possibilities

Remember, these issues have to be considered in
light of (P)'s case as laid out in court. By that narrative of
accusation, here is, in brief, what happened. The perpetrator, sneaked into the
victim's house, went to the little girl's bedroom, snatched her (or perhaps
had to hide there for a couple of hours and THEN snatched her, then sneaked
past the dog and out of the house with her, went on a bizarre odyssey
through the beach and desert and finally dumped her body by the side of a
road where it was ultimately found a few weeks later.

The question is simple: without a shadow of a
doubt, did (D) do this?

Could
(D) have actually done it as described?

All
parties agreed on this point: on the night of the victim's
disappearance, (D) was at the bar, drinking heavily, and left the bar, as
one witness stated, "stinking drunk." No witnesses claimed
anything to contradict that he had consumed a very large amount of alcohol and
that he was quite inebriated when he finally left the bar.

Given the State's timeline for the crime,
while In that drunken state, he had to have gone almost
directly to the victim's house, which, it is important to remember, he had never been in before,
ignore the alarm system (speaking of which, why did it not alert the father
who said he was home?), go
directly to her bedroom (although testimony indicated she did not always
sleep in the same bedroom even if he had known which was hers), manage to not
awaken or otherwise disturb her dog (which had no
trouble waking the father when it needed to go out), assault the little girl
(or perhaps hide in her room and only later assault her), carry her (or her
body) back past the dog and two brothers and the father, all without leaving
one single shred of evidence, There was no hair, no fibers, no prints, and no
sound. And he did all this while "stinking drunk."

Westerfield, it was testified, also tended
to sweat profusely, especially while drunk. Yet after spending
(according to the prosecution) up to two hours hiding in the house, there
was insufficient residue to alert the police sniffer dogs. Nor did
they alert when taken to his motor home to check for evidence of the little
girl.

Sorry, I'm not buying it. First I've never
seen anyone who was "stinking drunk" who could have done that
silently much less without touching at least something if only to steady himself
while trying to carry the little girl or her body. But even more
problematical to me is the issue of the dog, a Weimeraner that was bonded to
the little girl.

I've been around too many dogs to believe
he could have done that without getting the dog's attention, drunk or
not. The dog would have reacted to a strangers presence in its house
if not in protective mode then at lease as it did to
investigators and reporters by running up to them. Were it locked in a
room it would have scratched at the door or whined or done something to get
attention. And if it had
sensed the little girl's danger or fear, the dog would have been far more
agitated than it needed to be later when it needed to wake the father to go out to pee.

For me, this is a fatal flaw in the
State's narration. Holmes said, "When you eliminate the
impossible, whatever remains, no matter how implausible (or, I might
add, distasteful) must be the truth." I have to tell you, I think
this is an impossible task for anyone in (D)'s accepted state to have
accomplished as described.

It is far more likely that someone
completely in control of themselves emotionally and physically, who
knew the house, knew where the victim was sleeping, and, whom the dog knew
well, would be required to have done it. But, though for me this issue
alone would be enough to create serious questions and doubt, that is far
from the only problem I have. I don't believe that (D), drunk or otherwise,
was ever in that house. And if he was not, then the core of (P)'s case
starts to unravel because it is based on (D) assaulting and taking the
victim from her bedroom.

What
was his motivation?

Another
problem is the question of--and proposed answers to--why (D) would have done
this crime. Several
possible motivations were floated. The first based on an initial lie by the
mother and asserted that (D) killed and raped the little girl because the
mother had spurned his advances at the bar. She claimed she never danced
with him despite his advances and further that she did not know him except
as a neighbor. Oh pu-leeze. An intelligent man would kill the
child of a woman who refused to dance with him out of
revenge?

But then several things turned up in
testimony to destroy that idea... It turns out, according to testimony, that (1) she not only danced with him, she
"dirty danced" with him and was
"all over him" on
the dance floor; and (2) she did know him since she had taken Danielle to his
house the week before; and (3) in fact she had had occasion to see him at
the bar at least two times before that. So he was not spurned...if
anything, SHE was.

When that revenge idea failed to float, it was
quickly decided that he was a sex pervert, more precisely, a pedophile, motivated in
this heinous act by his deviant cravings for sex with children. The
evidence to support this was pornography found on his computer so this
bears some closer scrutiny, especially since the media has been more than a
little hypocritical about it all.

Bear in mind, he is portrayed as
a true predator, a man obsessed with pornography and especially children's
pornography to the point where he was driven by his perversion to toss away whatever
other intelligence level he might have (which was considerable as an
engineer/consultant and as a person whose work has led to a number of
patents for inventions helping people with arthritis and physical
disabilities ) and attack a neighbor's kid instead of doing what most
pedophiles do which is "hunt" a bit out of their own territory (Gacey)
or for strange targets wandering into their territory (Daumer).

The evidence of his obsession and
perversion found on his computer, was a
"collection" of downloaded pornography containing over 1,000
images of nude nubile, "well developed" females. Of those images,
80-some were questionable, meaning they females appeared to be young or young
looking. Fewer than half dozen were, apparently (so claims the
prosecutor) actually of underage females. This collection, according to
the police's computer expert, had been downloaded three years prior and was
viewed approximately every other week according to the computer's internal
"history" function. One--ONE--file was a video clip of a purported child
rape: a horrendous clip to be sure. But there was no indication whether it had
EVER been viewed and yet the press and the prosecutor continually referred
to that clip as (D)'s "collection" of child rape videos.

Wait a minute... I thought this guy was
obsessed with the stuff? From an obsessed person wouldn't you expect perhaps daily viewing
and, probably, new stuff being brought down all the time?

Now I understand that what I'm going to say
next is probably sheer coincidence, but his 18 year old son visited him
about...ready for it?...every other week. Of course the son denied
looking at it. He had no legal option for to view child pornography would be
a felony and he was not being charged with anything. In his police
interview (D) admitted to downloading it but claimed to not have reviewed it
recently and no evidence contradicted that claim.

The point is, does that State-defined access of the
images really indicate an obsessed pervert? Someone whose obsession
with little girls sent him on the prowl in his own backyard? Wouldn't
you expect a higher percentage of children's images (assuming those few
really were of children anyway)? Wouldn't you expect more constant
viewing? Wouldn't you expect newer images? Most pedophiles spend little energy
with adults so why the predominant collection of adult females?

Besides, especially here in Kalifor...oops...California,
the argument has always been maintained that pornography is not only harmless but
protected by the 1st amendment. It is not and never has been an
indicator, much less a predictor of behavior, it is held. Well, I'm
not going to get in the middle of that argument here since it is not the
point; the point is if it is NOT an indicator or predictor of behavior then
it cannot be held out to be evidence of a motive. And if it IS, then a
very much closer exam of the parents is in order, but we'll get to that down
the list...

Additionally, there was zero evidence in
the main trial that
(D) had EVER had any credible complaint or accusations made about him (except for a
very old DUI) and none relating to any deviant or inappropriate
behavior. In the penalty phase, a long passed story of a niece
complaining he was "bothering" her was presented but under cross
examination the person
themselves said they were (in describing the event) repeating what was written not their actual
recollection and her mother said that the incident was checked out, (D) was
spoken too immediately thereafter, and nothing seemed to have been out of
order so it went no further and there were no further incidences to indicate
anything other than a misunderstanding. Other than
that undefined situation, no evidence at all was submitted either at the case in
chief or during penalty phase to indicate any other history of such behavior.

That's important data since pedophiles generally do not wake up one morning in
their 50s and discover, oh surprise, they really really like little girls
and want to rush right out and have one. This lack of any prior history is
an issue for me. His ex-girlfriend indicated he really liked sex but
never indicated it was directed at anything other than adult women.
Wouldn't she or his ex-wife have at least had some suspicions? Would
NO ONE have any idea of his aberrant tastes? Wouldn't there be a trail
of complaints or even considerable innuendo and rumor among the family or
friends? Well, not if the State's
position is to be believed. In contrast to nearly all statistics about
these crimes, this was a lone aberration in that a man obsessed with child
pornography only acted on it once--this time. If so, then if it is not
the ONLY such case on record, it belongs on a very short and highly suspect
list.

There was testimony of one potential
incident. A girl, now in her twenties and a niece of (D)'s stated he
had touched her mouth in her sleep years before. The defense asked if
her testimony was what she recalled or what she was told had happened and
she stated in open court it was what she was told to recall. Her
mother was called to testify and stated she had investigated the incident at
the time, talked to both her daughter and to (D) and concluded it was a
misunderstanding. The news brings the girls claim up over and over but
ignores her later comments and those of her mother.

So, sorry, there is no evidence of a legitimate motive here
to accuse him of kidnapping, raping, and killing this little girl. If
everyone who had downloaded a collection of skin pix and gotten a few that
were really "out there" in the mix were sexual predators then no
child--heck no domestic pet--would be safe on the street. And women
generally would need far better fight training than they are getting now.

I understand that most sexual offenders
are also into pornography, but so far I don't believe you can draw the
reverse conclusion: that people into pornography have a high likelihood,
much less have a predetermination, to be sexual offenders. And until
that can be shown as an identifiable trend, this does not form the basis for
a motivation for the crime. It may be sleazy and depending on your
moral stance, my not be acceptable reading material, but legally, and
constitutionally, it has been ruled that there is no connection so one
cannot legally be implied here without direct and specific psychiatric
evidence to the contrary, none of which was presented.

Now he did, in the police interview tapes,
give a truly unbelievable response as to why he had downloaded the files in
the first place. But at this point, assuming for the moment his innocence
of the killing, he was probably worried about the possession of potentially
illegal materials. I never said he wasn't a sleaze, only that I didn't
think the case for murder was proved by the State.

Nope, it won't wash. But there's
more...

Fingerprints
of all kinds

First
we need to restate something so you are clear on it: there was NO evidence of any kind, including
fingerprints, to indicate (D) was EVER in the victim's house. But
there were other fingerprints found there that didn't belong to the
family or any party to this including (D)..

These were prints of an unknown party
found on
the banister and in the upstairs portion of the house that did not belong to
the family or to (D). It would make sense that someone, drunk or not,
would grab the hand rail if they were carrying a body, squirming or
otherwise, down a set of house stairs. So whose prints were these? The police don't know or at least
it was not pursued in the trial.

So where did they find the victim's
fingerprints.
Well, there were two prints in the motor home allegedly used to transport the
victim to her final death and disposal. Interestingly, at the same
time, there were NO
fingerprints of the (D), the owner of the motor home found anywhere in it... What?

One print of the victim's, a hand print,
was over the bed on the wall. The argument was that it has been placed there
as the little girl struggled (which meant she was taken from the house alive
with all the problems that created for the abductor especially if he was
drunk at the time). If (D) had scrubbed the motor home to
remove prints, and had been the one to struggle with the victim on the bed,
isn't it likely he'd have also scrubbed the area of the main action as well as
the rest of the motor home? And how is it possible that he drove it,
after the cleaning, back to its storage place and left not a single print on
it? Something is wrong with this picture.

In any case, what was clear in the
evidence was that the motor home commonly sat on the street unlocked.
That occurrence was so common that neighbors complained about it. The kids,
including the victim, it was
admitted, played on the street by where it was parked. Ask any
collection of 6-10 year old kids if they were playing by an unlocked motor home
if they would go in and look around, check out the place, jump on
the bed, etc.? Well, you don't have to, that survey has already been
taken. Better than 90% said they would. (Link
to survey)

So we now have access to the motor home
and a reasonable explanation for how the print got there. What we do
not have is a reasonable explanation for how it was the ONLY print of any
kind and from anybody to have been found there. Doesn't that strike
anyone as just a touch odd?

Of course, what is also fascinating is
that within the same neighborhood, there are a half dozen or so registered
Sex Offenders. ALL of them plus the parents plus the parents' sex
partners from the bar were interviewed and excluded from any further
consideration within 48 hours during which the (D) became the only suspect
because of a stupid trip he took (see below). Now that, folks, is the
world's record for speedy investigation!

Hairs
and Fibers

The
State's experts painted a clear picture of the ease, perhaps the
inevitability of hair or fiber evidence being left by people and carried for
transference across quite a trail. They then proceeded to argue that
the hair and fiber evidence pointed to their version of the story. but
does it really?

Well,
the State, of course, ignored the one hair found with the body as irrelevant
since they couldn't identify it. That makes internal sense I suppose
since they couldn't identify and never pursued the prints found in the victim's
house either... It was as if it a piece of evidence didn't allow
some version of a story that could point at Westerfield it was
ignored. Man that's not how an investigation is supposed to go, but it
is how this one went.

(D) had cleaned his motor home and house
but the vacuum sweeper bag contained no shred of evidence linking him to either the
victim or the victim's house. It is important you remember this little
tidbit because it does not fit the rest of it.

The State said (D) tried to cover his deed
by scouring the motor home and house to eliminate evidence. He also
took some clothes to his normal cleaners, all, they assert, to clean up
after this crime.

It is also important to remember that both
the little girl and her mother had been in his house a few days earlier and
the little girl ran all around in it according to the witnesses including
her mother. It
was also testified that the mother danced with (D) that night and
"rubbed herself all over him."

And remember the discussion about kids
getting into parked RVs as you consider the following.

In his house and in his motor home were
found a few (2-3, I can't remember which) fibers which were similar to ones
from the victim's house, presumably from the carpet or some fibrous bit of
clothing or blanket belonging to the victim although the State argued that he carried the victim out already
disrobed since a pair of her pajamas was found still in her bedroom.

However, the most the state expert would say was
that the fibers were "similar to" or were "consistent
with" the "types" of fibers found in the victim's
house. She could not be made to say they were either exact or were the
same though the prosecutor tried very hard to accomplish it and in summation
said it was the same fiber in exaggeration of the testimony. These
houses are part of a development tract: are they the only ones with
those kinds of rugs? Was (D) ever in another house with the same type
of carpet? No one asked. but even without that, there was an
even better version of fiber transference already described in the testimony:
the mother rubbing all over (D) when they were dancing.

Additionally, the witness first called the
fibers by different descriptions, a bright orange for one of them
and a dull orange for the other, in fact distinguished several types by
specific color. When the photomicrographs were shown
of the compared fibers, the strand structure appeared very similar but one
of them had lots
of little dark spots on it and the other had none. Yet, the State told us,
these were identical and proof the victim had been around (D) and in his motor home. I think they were neither.

I would argue (a) they do no such thing
since there were other ways for those fibers to get there and (b) so what if
they are, we already know that the victim and her mother and dog were in (D)'s
house recently and that the victim herself and maybe her dog had access to
and opportunity to be in the parked motor home. Plus, the fiber
transfer could also have happened during the close dancing and come not from
the victim but from her mother.

Additionally, although there were fibers
from (D)'s house and carpet found in his RV there were no carpet fibers from
the victim's home found in either his house or in his RV. Why
not. The obvious answer is that he was never there.

I don't think the fiber evidence has any
meaning at all here. It is too conflicting, too vague, and too
inconclusive to use as a basis to execute someone.

The
Infamous Blood Spot

Much
was made of the DNA evidence matching the victim's blood to a spot found on
(D)'s jacket and one in the motor home. Oh boy, here I thought was the
smoking gun, the real stuff to make it all indisputably clear and hang this
pervert. Then I heard the testimony...

The jacket was taken by (D) to his normal
cleaners. The clerk at the cleaners testified that he had looked
closely at the jacket with an eye to what it would take to clean it and
"did not see any blood spots on it." Yet the police, after
confiscating it, claim to have found a blood stain on it. What they
claim to have found was a 3/16" spot. That is not very much blood; less than from a typical
scratch much less someone wounded in a vicious assault. and I say
claimed because we never saw it, the stains on the jacket pieces, or even
photos of it.

That's right. As was pointed out by
a reader of this page, at the trials there were no photos given in evidence
of the blood spots, only the jacket with the holes cut out where they said
the blood had been. Yet two jurors interviewed after the verdict said
it was the blood on the jacket that convinced them... blood they never saw,
only heard about.

They also found a small blood spot
(1/4") in the
motor home. Here's where the State says the struggle took place (because
of the handprint) and yet only a 1/4" spot remained when this type of
evidence can remain and be testable for up to 50 years? We've already shown how the kids very likely played in the
motor home at some spot and, again, we're not talking the pool of blood one
would expect of such a violent crime.

Now it is important to relate that there
was no evidence of how the victim actually died. There was a lot of
evidence as to how she did NOT die: she was not stabbed, shot, beaten or
strangled. No evidence of "defensive wounds" or any other
such damage. Therefore, of course, the State concluded and argued, she
must have been suffocated. OK, so why would we think that blood
spots of any size would come from that activity and if it were a bloody
event, leave two very small and very widely separated
spots?

The
weird trip

(D)
did most certainly do one incredibly bizarre thing. If he was guilty
it was stupid; if he was not it was simply weird. But it was
impossible to ignore. The day following the night of the alleged
breaking into the victim's house, he took his motor home on an inexplicable
route to the beach and then wandering out to the desert where he got the
huge motor home stuck in the sand, then finally home. He claimed he
went to the beach first, found it unsatisfactory, then went to meet friends
he thought would be in the desert and, failing to find them, returned home.

This was not typical behavior for (D) to
be sure. But is it the behavior of an intelligent man trying to
dispose of the body of a victim. There are two very good disposal
sites along his trip, that is true. For one, we are
very close to the Pacific Ocean, large enough to hide lots of victims well
disposed of. And, by golly, he went to the beach. But was the body dumped
there? No.

And, of course, the great desert east of
San Diego itself, especially the area
he went to near Glammis with its endless dunes would be a great spot.
But was the body dumped there? No.

And even closer, accessible by 4WD is the
Anza Borrego desert area with incredibly remote areas for body
disposal. And (D) owns a 4WD vehicle and he is comfortable int he
desert. But did he (or someone) head into the real back country to dump the
body? No.

The man is a multi-patent holding design engineer for pity sake, with
a four wheel drive vehicle at his disposal and enough cash to rent a fair
sized boat. Is it likely that in this day and age he could think of no
better way of getting rid of the main piece of evidence than to cast it
rudely beside the road to a Casino? Does this man not watch ANY TV
where a plethora of forensics-based programs would let nearly anyone know he
(or she) is going to have to be very clever indeed to completely dispose of
a body.

I think the only thing his weird trip
proved is that he had wretched timing for his lost weekend.

Disposing
of the body

The
poor girl's body was dumped alongside a road out in the country, despite
being painted by
the State as being in the middle of nowhere along a nearly deserted
road. In fact it was neither. It was about a mile from a major
local Casino on Indian land. The road itself, though not an interstate highway
to be sure, was the normal route to the casino and therefore traveled
commonly and frequently.

The place where the body was found was in
a location where the only place to park the motor home, the State's alleged means of
transporting the body, was to have pulled a little to the side of the road...in
plain sight of anyone driving down the road. No witness however, ever was
called that saw the very noticeable vehicle either on the road at all much
less parked. And given the passion in this area, it is somewhat surprising
that people did not come out of the woodwork to CLAIM they had seen it
whether or not they had, much less that someone who REALLY saw it would not
step forward. How can that be? Unless it was never there.

There appears to have been no effort by
the killer to
perform the activities designed to cover evidence or, better yet, make the
body disappear. It was not dismembered and scattered, it was not
covered, it was not buried; and it was just a few yards from the road up a
berm so steep that the police had to cut foot holds in the side in order to
be able to carry their equipment. But 50 year old (D) with a bad case
of high pitched shakes and not in very good shape, most probably with a
raging hangover, was to have carried the
body here without help and without steps carved into the berm. And he
was to have done it after parking a 30+ foot motor home in plain sight on the
road.

Just how stupid was this otherwise
intelligent guy supposed to have become?

Buggy
Evidence

Forensic
entomologists were called in to discuss the grisly business of determining
when the body was dumped by analyzing the degree of insect activity in and
around the body. This is certainly more art than science, yet after
all of the experts' timelines were charted there was a common overlap of the
time for when the body was dumped. One of the four had a longer time
line based on the State's contention that the area was too dry for the
insects the other three said would be there. In doing so they
conveniently ignored that the site was just across the road from a river.

However the area of time overlap, which all
of
them agreed upon, would have placed the body being disposed of AFTER (D) was
under continual scrutiny by the press and police, meaning he could not have
done it.

Not certain, not scientifically
perfect...but the coincidence of all the timelines makes just one more
troubling little issue.

Who
else might have done it and how else might it have happened?

If
(D) did not do it, who did? I
think there are four possibilities to consider.

1. If in fact the "action"
started in the house as the (P) claimed then I think the father probably did it

If it didn't, then the death itself might
have been accidental and/or

2. (D) is taking the bullet for
someone else, like his son.

3. Some as yet unknown person did
it.

4. (D) actually did it.

Yes, as number 4 says, it is possible that
(D) actually did it. Personally I find that nearly impossible to
believe and I certainly think that the most the State proved was that he
might have been somehow involved (as per #2). Yet it has to be
considered as (to me
remotely) possible. But that is not enough for the requirement of
guilty beyond reasonable doubt. And that means I still have to examine
those other possibilities to see if any make more sense to me or, even if I
accepted the evidence, do any of them fit better?

Why
suspect the father?

I
don't think the father can be eliminated as a suspect for a number of
reasons.

Statistically it is overwhelmingly
likely to be a family member.

He has large chunks of time unaccounted
for that evening

He wouldn't be concerned with any of
the issues some stranger creeping into the house would face and he could
handle later disposal easily.

Any evidence would be naturally occurring
and easily explainable.

He (and his wife) went on an
unexplained cleaning rampage the next day and seriously disturbed the
crime scene for no apparent reason. Normally, innocent parents
would have every reason to to exactly the opposite: preserve any hope of
crucial evidence.

He has an interesting connection to two
identical and as yet unsolved crimes in the past. no, I'm not
accusing him of them, only suggesting he knows of two unsolved crimes
with nearly identical MOs. (For details check
unposted.com.)

He lied over and over to the police in
the early stages of the investigation as did his wife. Yet out
here where we bend over backwards to accept every lifestyle, no matter
how aberrant, those lies were considered irrelevant to the
investigation. He and his wife were more interested in their
reputations than in the investigation to find their daughter. How
normal is that?

The counter argument is that both parents
took and passed a lie detector test so we need to look at that just a bit
closer.

Lie
Detectors

During
his interrogation by the police, as testified and as revealed by later
released interview videos, (D) was interviewed for nearly 48 hours in
openly confrontational style. He was polite and tried to
cooperate. But he was verbally assaulted by the police who obviously
now believed he was the perpetrator. Over and over he was asked where
he put the body and over and over he denied any participation in the
crime. He was so exhausted he put his head on the table but they kept
at him. finally he started to get agitated at them and a bit
snippy. During that period of agitation he was given a lie detector
test and failed it. Had I been interviewed in the same manner he was,
assuming I was not now jailed for hitting a cop, I'd have been so agitated
as to probably fail the lie detector when they asked for my name.

It also came out conclusively that during the early part of the investigation the
parents lied to the police about their activities on the night of the
event. Taken in context however it has to be noted that the lying took
place at a time during which they also took a polygraph test and
PASSED. The police, properly, were trying to eliminate the usual
suspects which always includes the parents near the top of the list.

The fact that they passed the lie detector
was portrayed as certain evidence they were not involved but there are two
small problems that remain with that. First, polygraphs are NOT
admitted into evidence because of their vulnerability to cheating.
Second, we now know that the family was, at the time, lying so apparently
they lied on the polygraph and got away with it.

So how it can be argued that his having
failed and their having
passed a lie detector test means ANYthing? Much less that it is
conclusive of his guilt and clears
them of consideration?

Why
suspect (D)'s son?

Again,
there are a number of reasons to see (D)'s son as a possible suspect who is at
least as interesting to an investigation as the father.

He was home with no alibis for his time
(In fairness, I received an email from John Neal, (D)'s ex
brother-in-law and the son's uncle. In it he said " The
Friday night- Saturday morning between which time Danielle went missing
Neal was at a friends with many other people. His friend and his
friend's mother both testified to this during the trial.") I did
miss that testimony. If true I'd welcome corroborating
comments. But it means that if he did anything he didn't do it
that night. We've already shown that there is no real evidence as
to when she was killed, how she was killed, or why she was killed.
It could have been a horrible accident for all anyone knows.

The access to the pornography on his
dad's computer makes more sense, time wise, as being from him not his
father.

He had access to the jacket and other
clothing in the house.

If his dad did it, it makes no sense
for (D) to block all cross examination of the son since the kid had nothing
to hide and no knowledge to conceal.

Lawyer's instructions or not, truly innocent
people never expect a guilty verdict and nearly always react with
involuntary shock or emotional surprise. (D)'s face was an
interesting mix. His face showed an enormous strain but he
controlled it with a massive effort of will. I think the strain
came because he knew he was innocent and hearing those awful charges
read would hurt anyone who had not done it; and the control came because
he was taking the bullet for someone else.

And who else would inspire someone to take
such a heinous bullet but that person's own kid?

I think a very workable thesis is that the
little girl was confused and sickened by the actions of her parents and left
the house on her own to get away. That is why there is no evidence in
her house.

By this thesis, when out of the house she
somewhere ran into the real killer. If it was the son it
may have even happened accidentally but now there was a panic and he had no
option but to have his very inebriated father help him try to cover it
up. In that event, the hair and fiber evidence would fit, the
fingerprint evidence would fit and be explained as a poor cleaning job by a
hung-over man and a panicked teenager.

I admit that on some levels I have a lot of trouble with this version
since if I were the father and just had my kid assault and kill a little
girl, I'd take the kid out myself. But I know that some parents cannot accept their kids as
capable of wrong doing even if they were watching them doing the deed and will cover for them at all costs--even
themselves.

I'm not proposing that
the kid did it. The point is that it is no more implausible a theory
than that his dad did it.

Why
look farther afield?

There
are three possible directions here. One is that one of the registered
sexual offenders in the area is a pedophile, which statistics show have NEVER been
rehabilitated, did the deed.

The other is that the deed was done by one
of the sex partners of the parents. They were there, they had access,
they had interest in unrestrained sex. further, unlike all evidence of
(D)'s history, they frequently acted upon their sexual fantasies and
desires. I'm not making a morale judgment here, only an investigative one:
how can they not be seen as at least as likely perpetrators of a sexually
related crime as the defendant who only looked at his collection of images
(if, in fact, he was the one to view them) every other week? These
people carried on more or less constantly.

Now c'mon, can we do away
with the nonsense that their lifestyle plays no part in this? forget
issues of morality and personal sleaziness for a moment and just concentrate
on how it effects relevant issues here. It
provided house access and knowledge to virtual strangers; it cannot have
been seen as something calming to the little girl, and it is a small step
from breaking one set of sacred vows to lying about anything and then seeing
virtually anything as OK.

Of COURSE it is relevant because it shows
both to a potential killer and to investigators, somewhat predictable
behavioral patterns to either exploit or examine.

Then, a third possible direction to look is that some complete stranger
passing through did it as a crime of opportunity.

Far
reaching impact

(D)
was, despite all of the above issues available for the jury to consider, found guilty and will soon be
sentenced. Very likely he will get the death penalty. [DW was in
fact sentenced to Death for the crime not long after this was written. NDK
] Now don't get me wrong here; I am no bleeding heart liberal in
these matters, I happen to believe in the death penalty in the
sense that I think it is a fitting and proper punishment for some crimes
including this one -- but only if the convicted person really did it to
a scientific certainty based on hard, incontrovertible evidence..

If David Westerfield is executed for this
crime, then a person who, to my mind, was sentenced improperly, has been
killed by the state for a crime he potentially, if not likely, did not
commit. I believe the death penalty per se is constitutional.
But I think it UNconstitutional, not to mention unconscionable, for the
State to kill an innocent person.

It is certainly a travesty when a guilty
person goes free, but I can live with that more easily than I can live with
an innocent man being executed. Most bad guys are basic idiots and
sooner or later repeat the crime and the chances of getting them with the
goods. (No, I am not trying to diminish the cost to victims of repeat
offenders, merely say that the game is not over just because they managed to
get off if the State failed to make the case.)

But when someone is executed it does not
matter if they are later shown to have been innocent. There is no
recovery from the execution. So although I believe in the validity of
the Death Penalty, I think it needs to be reserved for cases where the
sentence is based on guilt established beyond any reasonable doubt and, in
fact, all the way to a scientific certainty.

And, if (D), involved or not, was not the
killer, then the real killer is still out there.

So
Why
the Verdict?

OK,
you say, if all these issues were there for the jury, how could they find
him guilty? I think several things came into play. Bear in mind
that unlike other trials, these jurors were not sequestered. Despite
honest best efforts it is impossible to believe they are immune from outside
input and feedback. Both the press and locals have, as I said,
convicted him from the first day and read everything and every bit of
evidence both presented and implied, from the perspective of a guilty
person.

And, of course, the specter of the OJ
trial cannot be ignored. NO ONE would want to be seen as another OJ
juror that, idiotically released a likely murder for all the wrong
reasons.

It was a major mistake not to sequester
this jury from the moment the press circus started but it didn't
happen. I have a huge respect for the effort jurors generally put into
objectively evaluation evidence and trying to do as instructed in avoiding
outside influence. But I don't think it was even remotely possible in
this case. Even the incredibly stupid antics of an LA radio station
handing out Broccoli to indicate what they called "Broccoli Heads"
(meaning stupid) jurors who would not immediately see this guy's guilt, took
place in the part of the courthouse where the jury was taking its break.

There would certainly be some that saw the
State's case as convincing. That would be expected. But given
the issues I've raised, I also do not think it reasonable that not a single
juror saw these issue. So, to me, all I can think of is the insidious
influence from the outside or a powerful influence inside the jury that
quelled all argument to the contrary.

Besides, we are now discovering a
disturbing number of innocent people convicted by juries when the case was
not, in retrospect, all that strong. so why did they convict?
Who knows but outside influence has to be considered as a possible
element. I believe it definitely was in this case.

Sealed
Documents

After
the case was closed the judge released some sealed documents that, on the
surface, appeared to support the verdict of guilty. Of course if you
believe he is guilty they can be seen that way. But there are other
ways of looking at them. It also has to be remembered that the
contents of those documents are being reported by media that was already
convinced of guilt.

One document said that early in the case,
(D) tried to plea bargain for a lesser charge in return for telling the
authorities where the body was located. If that is true, one still
cannot equate knowing where the body was located and having done the
killing. If, as I suggested, he was covering for the real killer, he
might know or suspect the disposal site. Perhaps he even helped with
the dumping of the body IF it was done early and not later as the forensic
evidence suggested. But that makes him an accessory not the killer.

Another document suggested that some
witness reported hearing something that sounded like a scream coming from
the motor home. It was disallowed for a reason: it means
nothing. Was a TV on? A radio? Were children playing in
it? Did the sound really come from the motor home? Again, there
are multiple ways of interpreting the data, many of which do NOT lead to the
conclusion that Westerfield himself was in there killing the little girl.

Conclusion

Look,
I
cannot really say with any scientific certainty that (D) absolutely did not
do the crime and am not trying to do that here. Only he and the dead little girl and the dog know that
answer for sure at
this moment in time. But that's not the issue. The issue--the
only issue-- is that I do
not believe it is reasonable to assert that there is no remaining question
or reasonable doubt about his guilt in this matter. I contend that in
a less passionate environment it would be clear that the prosecution did not
prove their case beyond a reasonable doubt.

Clearly, at least 12 people, and the only
12 people who really matter, already have disagreed with me and theirs is,
after all, the last word. But it all leaves me unsettled and, as
mentioned before, makes me question some cores assumptions.

Of course the press was all over
themselves congratulating each other that they had seen his guilt from the
first. But the frenzy that could have gotten otherwise reasonable
reporters to ignore issues and questions and, from the start, assume he was
guilty and ignore any mitigating scraps of data as if they did not exist,
was frightening. The only logical answer was they thought he was a
Republican but I don't think he was.

It is now too late to change the jury's
verdict of guilt. And, as I said, it is possible they are right.
But the questions and doubts are sufficient to me to make it inappropriate
to apply the Death Penalty. At least with life in prison it is
possible that if he is innocent, the actual killer can be found. I'm
not sure there was any reversible error committed during the trial.
Allowing, during the sentencing phase, a witness to testify about something
she admitted on the stand she did not remember and recalled only from
prompted notes would certainly have been enough during the main trial but
what is allowable in the latter phase seemed a lot looser. (And the press
still hammers at that testimony even though it was discredited in cross
examination.)

If I was convinced beyond doubt that (D)
did this horrible crime I'd be
arguing to string this guy from the nearest tree. Returning to public
drawing and quartering would not be out of line by my thinking for this
crime. But I'm not so convinced. And because of it I hope they
give him life so that perhaps the truth can ultimately be found with that
scientific certainty.

When it is, if it turns out he really did
it, then I'll happily pull the trigger myself. If not, then we have not made
a horrid mistake out of passion and outrage. In the larger
picture, the entire system is now in question to me and the press has
lost what little credibility they had before the trial.